State v. Salazar

2022 UT App 38
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
K EVIN S ALAZAR ,
Appellant.
Opinion
No. 20200561-CA
Filed March 31, 2022
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 151910846
Troy L. Booher, Beth E. Kennedy, and Pal A.
Lengyel-Leahu, Attorneys for Appellant
Sean D. Reyes and Marian Decker,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 	Kevin Salazar challenges his conviction for aggravated
sexual assault. Salazar primarily contends that his trial counsel
provided ineffective assistance, warranting a new trial. We agree
and reverse.

State v. Salazar
20200561-CA 	2 	2022 UT App 38
BACKGROUND1
The Assault
¶2 	One evening in October 2012, Salazar went to a hookah
lounge he often frequented. Also at the lounge that night were
the owner of the lounge (Owner), Shannon,2 Shannon’s friend
(Friend), 	and 	Shannon’s 	coworker 	(Coworker). 	Shannon
considered both Salazar and Owner to be her friends.
¶3 	After smoking in the lounge for a time, Salazar, who
looked to Shannon like he had been crying, asked to speak to
Shannon in a storage closet in the hallway that connected the
lounge to the front of the shop. After they entered the closet,
Salazar closed the door and began kissing Shannon’s neck.
Shannon told him to stop, stating that she “ha[d] a boyfriend.”
This did not deter Salazar, and soon Owner knocked on the
closet door and entered the closet. Shannon thought Owner was
going to help her, but instead Owner “bent [her] over,” “pulled
[her] pants down,” and began having “vaginal sex with [her].”
While 	this 	was 	occurring, 	Salazar 	removed 	his 	pants 	and
inserted 	his penis 	into 	Shannon’s mouth. 	Shannon 	did 	not
“agree[] to what was going on.”
¶4 	Shannon next recalled “being on the floor and [Salazar]
was underneath [her] and [Owner] was behind her.” At this
point “[Salazar] was having sex vaginally” with Shannon while
Owner was penetrating her anally. The men then high-fived
each other, and Salazar said, “Double penetration.” While this
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence 	only 	as 	necessary 	to 	understand 	issues 	raised 	on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
2. A pseudonym.

State v. Salazar
20200561-CA 	3 	2022 UT App 38
was occurring, Shannon “heard [Friend] on the other side of the
door and . . . started crying.”
¶5 	Friend heard Shannon say, “Help me,” and Friend began
banging 	on 	the 	door 	and 	trying 	to 	open 	it, 	but 	she 	was
unsuccessful because it was locked. At this point, as Shannon
continued crying, the men stopped. Shannon then pulled her
pants back on and ran out of the closet. Friend noticed that
Shannon “was really distraught,” crying, and “could barely
breathe when she was talking.” Shannon and Friend then left the
lounge. 	While 	leaving, 	Shannon 	ran 	into 	Coworker, 	who
described her as “barely able to form sentences because she was
crying so hard.” She was “hysterical, sobbing, telling us, ‘I have
to go. I have to go. I have to get out of here.’” She then told
Coworker, “We have to go. I was raped. These two guys took me
into a closet and raped me.”
¶6 	While in the car heading home, Shannon told Friend what
happened in the closet. When Shannon got home, she called an
old friend (Friend 2) and, while crying, told him that Salazar and
Owner “had raped [her].” Shannon did not call the police
“[b]ecause [her] dad was dying of cancer and [she] didn’t want
to stress him out.” But Friend 2 did call the police, and a
detective then called Shannon. He noticed that her “speech
pattern was broken . . . [l]ike, she had been sad or crying or
upset.” The detective then met with Shannon at her home. While
telling 	the 	detective 	about 	the 	assault, 	“she 	was 	sad,” 	she
“wouldn’t look [the detective] in the eye,” and her body was
“slumped.” Shannon also told the detective that at some point
before the assault, a man had given her a soda and that she felt
“weird” after drinking it. The detective convinced Shannon to go
to the hospital for a sexual assault examination.
¶7 	At the hospital, the nurse conducting the exam discovered
injuries to Shannon’s genitals and anus and later testified that
Shannon’s rectal injuries “stuck out” to her because they were
the “worst” she had “seen on a patient” and so she was able to

State v. Salazar
20200561-CA 	4 	2022 UT App 38
remember them years later when testifying. But the nurse also
indicated that although severe, the injuries could be consistent
with consensual sex. Shannon also told the nurse about the soda.
¶8 	Because Shannon did not want to further stress her father,
she did not “want to go forward with the prosecution of the
case.” The case sat idle until 2015—a year after Shannon’s father
had passed away—when a member of the production team of a
television show that investigated unsolved sex crimes contacted
Shannon. He told Shannon that “they pulled [her] case and
wanted to go through the story of what happened and wanted to
. . . help 	[her] get 	through with getting 	charges pressed.”
Shannon 	agreed 	to 	participate 	in 	the 	show 	and 	personally
appeared on the program. At some point during 2015,3 police
interviewed 	Shannon, 	and 	after 	her 	interview, 	police
interviewed Salazar in July 2015.
¶9 	During his interview, Salazar gave his version of events in
which Shannon “pulled my arm and we went into the [closet]”
where she “pull[ed] down my pants” and “suck[ed] my penis.”
Shannon then opened the door when Owner knocked on it and
pulled him in and “started jumping on him, making out [and]
pulling down his pants.” At this point, she began sucking
Salazar’s penis again while Owner penetrated her from behind.
According to Salazar, Shannon then said she wanted him so they
“switched.” Shannon then said she “wanted” Owner and “they
switched again,” this time with Shannon on top of Owner while
again giving Salazar oral sex. Salazar stated that at this point,
Shannon “started to cry.” He asked if she was “okay,” but “she
was just crying and crying and crying” and then left the closet.
3. It is not clear from the record if Shannon contacted the police
or if the police contacted Shannon about reopening the case in
response to the television show. It is also unclear whether
Shannon’s 	and 	Salazar’s 	police 	interviews 	were 	conducted
before or after the show aired on television.

State v. Salazar
20200561-CA 	5 	2022 UT App 38
¶10 	Salazar recounted that Shannon called him a few days
later and apologized for involving the police. She said her
friends threw her “under the bus” but that she and Salazar
“were cool again,” and they continued to be friends and hung
out multiple times. One of the interviewing officers stated that
“it sounds like she was pretty excited, like she wanted to have
sex,” and Salazar responded, “That’s what it seemed like, but
sitting here I don’t think so.” An officer later asked, “Any chance
you 	could 	have 	misinterpreted 	what 	[Shannon] 	may 	have
wanted?” Salazar answered, “I doubt it. Due to the fact that she
was the one pulling [our] pants down.” The officer then asked
whether he could have misinterpreted her pulling Owner into
the closet, suggesting she may have done that “to help her get
out of the situation she was in with you.” Salazar responded, “I
don’t know.” The officers again asked what happened, and
Salazar stated that “as far as I can remember,” Owner held “her
down for a bit” before she left. The officers stated that, from their
perspective, it seemed that Shannon did not want to be in the
closet. They asked Salazar whether he knew she did not want to
be in there, to which Salazar responded, “At the time probably
not, but probably at the time, probably.” The officers did not ask
him 	to 	clarify 	this 	confusing 	response. 	Salazar 	also 	denied
high-fiving Owner or saying anything to Owner, stating that
they instead were “just looking at each other.” The officers
continued to press Salazar, stating, “You know for a fact she
didn’t want to be there; right?” Salazar responded, “Honestly, at
the 	time 	probably 	not.”4 	The 	officers 	then 	asked 	whether
Shannon running away “look[ed] like a girl that just want[ed] to
have sex with the guys?” Salazar responded, “Now that it’s
4. Standing alone, it is unclear whether Salazar meant that, at the
time, Shannon probably did not want to be there or whether he
meant that, at the time, he did not realize that she did not want
to be there. His subsequent answer suggests he likely meant the
latter.

State v. Salazar
20200561-CA 	6 	2022 UT App 38
more clear, probably not” but at the time it seemed like “she
wanted to have sex.”
Preliminary Hearing and Trial
¶11 	Nearly seven years after the incident, and four years after
the 	interviews, 	the 	State 	charged 	Salazar 	and 	Owner 	with
aggravated sexual assault in August 2019.5 They were tried
together. Salazar retained counsel (Trial Counsel) to represent
him. Owner had his own counsel.
¶12 	At the preliminary hearing, Shannon testified about the
assault and her later contact with Salazar. She stated that she
received “a few messages” from Salazar in the days immediately
after the incident, but she “block[ed] him after that and . . .
reported it to the police.” She also testified that she did not
“hang out with him after [the assault]” and “never had any
direct 	contact 	with 	Mr. 	Salazar.” 	She 	further 	testified 	that,
following the assault, she never texted, called, or left Salazar any
voicemails. Shannon also testified that she remembered being
given a soda at some point before the assault by an unidentified
male but stated that she did not remember whether she told the
detective she “felt funny or strange after drinking [it].” She then
stated that she did not “feel that [the soda] affected [her] in any
way.” Salazar and Owner were bound over on the charged
counts, and the case then proceeded to trial.
¶13 	At 	trial, 	the 	State 	called 	Shannon, 	Friend, 	Friend 	2,
Coworker, the nurse, and the detective to testify. Except for
Shannon, their testimony was consistent with the facts laid out
previously.
5. It is unclear from the record why it took nearly four years
from 	the 	time 	police 	interviewed 	Shannon 	and 	Salazar 	for
charges to be filed.

State v. Salazar
20200561-CA 	7 	2022 UT App 38
¶14 	During her testimony, Shannon had significant trouble
remembering specifics, even stating at one point that she did not
“remember 	where 	it 	happened.” 	She 	could 	not 	remember
whether 	she 	or 	the 	defendants 	said 	anything 	after 	Owner
entered the closet. She could not remember how they ended up
on the floor. Overall, in response to questions regarding specifics
of the incident, she stated more than 40 times that she could not
remember. To help refresh her recollection, the prosecutor gave
her copies of her police interview, the nurse’s sexual assault
exam, and the preliminary hearing transcript. After reading
these documents, many of which included highlights or sticky
notes, she stated that her memory was refreshed, but the trial
court had to caution her at one point to put the documents down
when 	thereafter 	responding 	to 	questions. 	Throughout 	her
testimony, she had to rely on those documents to remember
what occurred, and she admitted that she had reviewed the
documents before trial and would not have been “able to relate
the details that are in [the documents] without having read
[them] again.”
¶15 	On cross-examination, the following exchange took place:
[Trial Counsel]: [T]he things that you’ve said are
that 	you 	couldn’t 	remember 	anything 	after
[Salazar] was in the closet with you up until the
very end; is that right?
[Shannon]: Correct.
[Trial Counsel]: So that’s the truth; right? Those are
the things that you can’t remember; right?
[Shannon]: Correct.
[Trial 	Counsel]: 	Okay. 	The 	things 	you 	can
remember are simply this: That you were in a
closet with [Salazar] and that sometime later you

State v. Salazar
20200561-CA 	8 	2022 UT App 38
can recall being on the floor with him and someone
else; right?
[Shannon]: Him and [Owner], yes.
[Trial Counsel]: And you have no recollection, even
after you read that thing, which was before today,
you had no recollection of any of the things that
were in that document, right?
[Shannon]: Can you rephrase the question?
[Trial Counsel]: Sure. You looked at the interview
that was typed up on July 31 . . . and you read it at
your leisure, you saw all the things that you said
back then; right?
[Shannon]: Right.
[Trial Counsel]: But when you came in here today
and you took an oath to testify in front of these
people, you already could not remember any of
that until you were shown it again right in front of
the jury, right?
[Shannon]: Correct.
¶16 	Additionally, Shannon stated that she did not remember
telling the detective or the nurse that she felt strange after
drinking the soda. But when presented with the detective’s and
the nurse’s reports, Shannon did not “contest” that she told them
she felt strange after drinking the soda. And when presented
with a transcript of the preliminary hearing, she agreed that she
testified that she “felt fine” after drinking the soda.
¶17 	Despite 	her 	troubles 	remembering 	the 	details 	of 	the
incident, Shannon did testify that she “always remembered the

State v. Salazar
20200561-CA 	9 	2022 UT App 38
end of what happened to [her] in the storage room,” with Friend
at the door while Owner “had his penis in my rectum and
[Salazar] was vaginally.”
¶18 	Regarding her interactions with Salazar after the assault,
Shannon 	stated 	that 	she 	did 	not 	recall 	having 	contact 	or
socializing with Salazar after the incident but that she “was told
that 	I 	reported 	something 	before 	to 	the 	cops, 	but 	I 	don’t
remember.” Shannon also stated that it was “correct” that “at the
preliminary hearing under oath [she] said that [she] would never
have had contact with [Salazar] after the fact” and that if she
inadvertently ran into him, “it probably wouldn’t have been a
big deal” because she was “just trying to put it all behind [her].”
¶19 	At the close of the State’s case, Trial Counsel moved for a
directed verdict on the ground that because Shannon had no
independent 	memory 	of 	the 	events, 	there 	was 	insufficient
evidence 	from 	which 	the 	jury 	could 	conclude 	beyond 	a
reasonable doubt that a crime had been committed. The court
denied the motion.
¶20 	On the advice of Trial Counsel, Salazar did not testify in
his defense. Trial Counsel explained that he advised Salazar not
to testify because he believed it to be “in his best interest” due to
“some uncounseled statements he gave during an interview to
the police department.” Owner also did not testify but called his
brother and a friend, who both testified that Shannon did not
appear to be crying or upset when she left the lounge on the
evening in question. The jury convicted both defendants of
aggravated sexual assault.
Post-trial Motion
¶21 	Through new counsel, Salazar moved for a new trial on
four grounds relevant to his appeal. First, he asserted that Trial
Counsel 	was 	ineffective 	for 	advising 	Salazar 	not 	to 	testify
because he was the only one who could have contradicted

State v. Salazar
20200561-CA 	10 	2022 UT App 38
Shannon’s testimony. Second, he contended that Trial Counsel
was ineffective for failing to call two witnesses, Junior and Tim,
who Salazar informed Trial Counsel would have testified that
Shannon “acted comfortable—even flirtatious—around [him],
only a few months after [Shannon] said [Salazar] raped her.”
Specifically, 	Junior 	and 	Tim 	would 	have 	testified 	about 	an
evening 	where 	Shannon 	came 	over 	to 	Junior’s 	house 	with
Salazar. That evening, they smoked hookah and played video
games, and at the end of the night, Shannon fell asleep on
Junior’s king-size bed with both Salazar and Junior. Junior also
would have testified that he witnessed Salazar socialize with
Shannon on two other occasions. Salazar explained that this
testimony would have “undermined 	[Shannon’s] account of
what happened inside the closet” because Junior and Tim “saw
how [Shannon] later acted around [Salazar], and a reasonable
jury could have concluded that her actions were inconsistent
with someone who had been raped by [Salazar].” Third, he
argued that, although many more text messages between him
and Shannon were lost when he got a new phone, there were
still messages between the two on an app called Voxer.6 These
messages 	were 	readily 	available 	on 	an 	iPod 	he 	gave 	Trial
Counsel, and the messages were at odds with Shannon’s denials
of subsequent contact with Salazar. New counsel argued that
Trial Counsel was ineffective for not obtaining and using those
messages 	to 	“undermine” 	Shannon’s 	testimony. 	Finally, 	he
asserted that Shannon’s testimony was inadmissible because, at
the end of her testimony, she admitted she had no independent
memory of the assault and had “testifie[d] from documents
beyond what she actually remember[ed].”
6. Voxer is an app that allows users to exchange “voice, text,
photo, and video messages.” About Us, Voxer, voxer.com/about
[https://perma.cc/7ALW-BPFN]. 	Its 	primary 	service 	is 	to
“deliver[] voice live—so it can be listened to immediately” while
also 	“simultaneously 	record[ing] 	the 	message—so 	it 	can 	be
listened to later.” Id.

State v. Salazar
20200561-CA 	11 	2022 UT App 38
¶22 	In support of his motion, Salazar submitted a number of
affidavits, including one from his sister in which she averred
that she had logged into Salazar’s Voxer account and was able to
access 	numerous 	voice 	messages, 	along 	with 	a 	single 	text
message,7 	which 	Shannon 	sent 	to 	Salazar 	in 	the 	months
following the incident. As part of her affidavit, Salazar’s sister
provided screen shots from the app showing that Shannon sent
twenty voice messages8 and one text message to Salazar in
January 	2013.9 	For 	his 	part, 	Salazar 	sent 	Shannon 	sixteen
messages. Apparently not all the voice messages were accessible
when Salazar’s sister tried to open them, but she was able to
provide a partial transcription as follows:10
7. This text message was in addition to an initial message that
was generated by the Voxer app, letting Salazar know that
Shannon was now using Voxer.
8. Salazar’s sister’s transcription of the messages indicates that
Shannon sent nineteen voice messages. But after reviewing the
screen shots of the messages, it is clear that Shannon sent twenty
voice 	messages, 	one 	of 	which 	was 	omitted 	from 	the
transcription.
9. All that can be seen from these screen shots is a message
exchange between Shannon and Salazar, with indications when
the voice messages were sent along with the length of each
message. 	The 	exchange 	begins 	with 	a 	voice 	message 	from
Shannon 	and 	includes 	a 	text 	message 	in 	which 	Shannon
complains of neck pain in response to an audio message from
Salazar 	in 	which 	he 	inquired 	about 	how 	she 	was 	fairing
following an auto accident. Shannon’s twenty audio messages
ranged in length from one second to fifty-nine seconds.
10. Aside from altering names with bracketed substitutes, we
have reproduced the transcription exactly as it is found in the
(continued…)

State v. Salazar
20200561-CA 	12 	2022 UT App 38
1/23/13 	(0.9) 	[Shannon]: 	[Sounds 	only 	– 	no
speaking]
1/24/13 (0:01) [Salazar]: Message uploaded partially
1/24/13 (0:02) [Shannon]: “I’ve been good, how are
you? Come to Babylon tonight.”
1/24/13 (0:06) [Salazar]: Message uploaded partially
1/24/13 (0:08) [Shannon]: “Well we’re going to the
warehouse party first and that starts at nine, and
we’ll only go for like an hour so I’ll probably be at
the Babylon around ten, ten-thirty.”
1/24/13 (0:12) [Shannon]: “Yeah you should for sure
try to come and I’m good, I’m just donating plasma
right now but umm . . . my dad, we just found out
he has brain cancer too so yeah, it’s been kind of
rough.”
1/24/13 (0:16) [Salazar]: Message uploaded partially
1/24/13 (0:25) [Shannon]: “Yeah pretty much, I’m
donating bone marrow then maybe in the next like
two weeks or so—you get like a thousand bucks
for that. But um, Babylon, [John] is going, I think
you know him. [John] or whatever, he’s my boy
and then me, um, [Shelly], and [Brent] and I don’t
know there’s lots of people.”
(…continued)
record, and all the other alterations are from Salazar’s sister’s
original transcription.

State v. Salazar
20200561-CA 	13 	2022 UT App 38
1/24/13 (0:04) [Shannon]: Message uploaded partially
1/24/13 (0:05) [Salazar]: Message uploaded partially
1/24/13 (0:11) [Shannon]: Message uploaded partially
1/24/13 (0:10) [Salazar]: Message uploaded partially
1/24/13 (0:10) [Salazar]: “Yeah you do. Uh—yeah so
how’s 	school? 	How’s 	uh—what, 	what 	are 	you
gonna do? Like, are you gonna like, go back to
school? Or what? What are your plans?”
1/24/13 (0:02) [Shannon]: “I’m actually joining the
Airforce.”
1/24/13 (0:10) [Salazar]: Message uploaded partially
1/24/13 (0:29) [Shannon]: Message uploaded partially
1/24/13 (0:13) [Salazar]: “Man that sounds crazy.
Um—well that’s good, you’re gonna be getting a
lot of dick so I mean that good for you cause I
know you like to fuck a lot but, that's good. Uh—
but about the car accident; that sucks to be you
guys but are you guys alright?”
1/24/13 [Shannon] (typed): “No . . . Ugh my neck
fuckin kills”
1/24/13 (0:05) [Salazar]: Message uploaded partially
1/24/13 (0:03) [Shannon]: Message uploaded partially
1/24/13 (0:02) [Salazar]: Message uploaded partially

State v. Salazar
20200561-CA 	14 	2022 UT App 38
1/26/13 (0:03) [Shannon]: Message uploaded partially
1/26/13 (0:16) [Salazar]: Message uploaded partially
1/28/13 (0:01) [Shannon]: Message uploaded partially
1/28/13 (0:01) [Salazar]: Message uploaded partially
1/28/13 (0.6) [Shannon]: “Why not?”
1/29/13 (0:01) [Salazar]: “What are you doing?”
1/29/13 (0:02) [Shannon]: Message uploaded partially
1/29/13 (0:01) [Shannon]: Message uploaded partially
1/29/13 	(0:59) 	[Shannon]: 	[background 	noise—
speaking with someone else]
1/29/13 (0:01) [Salazar]: Message uploaded partially
1/29/13 (0:10) [Salazar]: Message uploaded partially
1/29/13 (0:01) [Shannon]: Message uploaded partially
1/29/13 (0:15) [Salazar]: Message uploaded partially
1/29/13 (0:02) [Shannon]: “I almost got in a fistfight
in Babylon today.”
1/30/13 (0:03) [Salazar]: “[Shannon] what are you
doing? We should chill right now. You down?”
1/31/13 (0.6) [Shannon]: Message uploaded partially

State v. Salazar
20200561-CA 	15 	2022 UT App 38
¶23 	Salazar averred that he told Trial Counsel that he “still
had access to some of the messages [Shannon] and I sent each
other in early 2013” located “on an app called Voxer.” He stated
that he gave Trial Counsel “an iPod with the Voxer app installed
on it,” along with the login information and “asked him to
review the messages to and from [Shannon] and to use them at
trial.”
¶24 	In response to Salazar’s motion, the State contended that
Trial Counsel’s advice to Salazar not to testify was objectively
reasonable due to Salazar’s inculpatory statements made during
his police interview. The State also argued that neither Junior
nor Tim were present at the lounge the night of the assault, and
therefore 	their 	testimony 	regarding 	the 	later 	purported
“interactions” between Salazar and Shannon would “not address
the issue of consent.” The State explained that Salazar wanted
the
court to buy into the idea that a “victim” should
respond 	to 	their 	rapist 	in 	some 	standardized
manner, but research shows this simply is not true.
How an individual reacts or interacts with others is
complex. In fact, there was discussion between the
parties about the potential of the State calling a
“Rape Myth” expert which did not occur based
upon 	many 	factors. 	Ultimately, 	[Trial 	Counsel]
made the decision not to pursue this theory of the
case and no expert was “noticed.”
Given the prospect that an expert would have been called to
undermine the significance of the post-rape interaction, the State
argued it was “a perfectly reasonable trial strategy not to attack a
‘Victim’ for their post assaultive behavior.”
¶25 	Regarding the Voxer messages, the State argued that
“there is nothing in the record to indicate that” Trial Counsel
“had it or even knew about it” or that he “was aware of these

State v. Salazar
20200561-CA 	16 	2022 UT App 38
conversations.” The prosecutor explained that before trial, Trial
Counsel had turned over Salazar’s “phone”11 and passwords,
and “no messages were located” by investigators. The State
further 	asserted 	that 	even 	if 	Trial 	Counsel 	did 	have 	the
messages, there was “no way to authenticate [Shannon’s] voice
to show that these messages even came from her.” At oral
argument on the matter, the prosecutor argued that “this is
newly discoverable evidence.” The prosecutor claimed that Trial
Counsel came to him and “said there’s messages on this phone,”
and the prosecutor responded that “instead of you paying for it,
let the State do it. . . . And he gave me the phone, so we . . . could
save, quite frankly, Mr. Salazar some money. And we did the
download on the phone” but did not find the messages. The
prosecutor 	explained 	that 	if 	Trial 	Counsel 	did 	have 	the
messages, a reasonable explanation for Trial Counsel not using
the messages was that “he knew that [the prosecutor] would
have called the counter-intuitive expert. He knew that. We’d had
. . . conversations on that.”
¶26 	Finally, the State argued that Shannon’s testimony was
admissible because her “memory was properly refreshed under
Utah Rule of Evidence 612 which permits a witness’s recollection
to be refreshed by a writing.” The State contended that “[m]ost
of [Shannon’s] testimony was from memory without necessity
for refreshment” and “[t]he testimony that was made after
refreshing her recollection was properly admitted.”
¶27 	The court denied Salazar’s motion. It ruled that Trial
Counsel’s advice to Salazar not to testify was reasonable because
during 	Salazar’s 	interview 	with 	police, 	he 	“agreed 	with
detectives on three different occasions that [Shannon] probably
did not want to have sex.” It explained that “[t]hese are highly
11. There is no indication in the record that both a phone and an
iPod 	are 	in 	play. 	The 	prosecutor 	apparently 	misspoke 	in
referring to a “phone.”

State v. Salazar
20200561-CA 	17 	2022 UT App 38
impugning statements, and it was reasonable for trial counsel to
prevent the jury from hearing them.”
¶28 	The court then ruled that Trial Counsel did not perform
deficiently by not calling Junior and Tim to testify. It determined
that “it was reasonable for defense counsel to weigh the danger
that the jury may consider the testimonies of [Junior and Tim as]
‘victim-blaming’” that would have hurt Salazar’s case, especially
“in the milieu of contemporary American Politics, where the
‘#MeToo’ and other movements have brought awareness and
initiated 	discussion 	of 	counterintuitive 	post-assaultive
behavior.”
¶29 	Regarding the Voxer messages, the court noted that there
was 	disagreement 	on 	whether 	this 	was 	newly 	discovered
evidence or whether it was evidence that might support an
ineffective assistance of counsel claim. The court noted that it
was “doubtful this is newly-discovered evidence as the Voxer
messages could have been discovered and produced at trial in
the exercise of reasonable diligence.” And at oral argument on
the matter, the court stated, “There’s evidence before me that
[Trial Counsel] had them and elected not to use them.” But it
determined that regardless of whether it was newly discovered
evidence 	or 	constituted 	an 	ineffective 	assistance 	of 	counsel
claim, Salazar’s claim was unavailing because he could not show
prejudice. The court noted that the Voxer messages showed that
Shannon and Salazar had contact after the assault and that
Shannon invited Salazar to Babylon, a hookah lounge, and
talked about Shannon’s future plans and her father’s illness. The
court 	then 	ruled 	that 	although 	Shannon 	testified 	at 	the
preliminary hearing that she had no contact with Salazar after
the assault,
she also testified at the preliminary hearing and at
trial 	that 	she 	had 	forgotten 	she 	exchanged
messages with [Salazar] and reported the messages
to the police. . . . Thus, presenting the Voxer

State v. Salazar
20200561-CA 	18 	2022 UT App 38
messages 	to 	the 	jury 	would 	have 	confirmed
[Shannon’s] testimony as much as it would have
impeached it. [12]
Furthermore, even if the jury found [that
Shannon] 	lied 	during 	the 	preliminary 	hearing
based on the Voxer messages, the jury could still
[have] found her credible about the sexual assault.
[Shannon’s] 	testimony 	was 	corroborated 	by
[Friend’s] 	testimony 	and 	was 	consistent 	with
statements 	she 	made 	to 	[the 	nurse] 	and
[Coworker].
¶30 	Finally, the court rejected Salazar’s claim that Shannon’s
testimony 	was 	inadmissible 	in 	its 	entirety 	because 	it 	was
“convinced” 	by 	Shannon’s 	“demeanor 	and 	her 	ability 	to
acknowledge when her testimony was not refreshed that her
testimony was reliable enough to be admissible.” The court then
denied Salazar’s new trial motion. Salazar appeals this denial.
ISSUES AND STANDARDS OF REVIEW
¶31 	Salazar claims that the trial court erred in denying his
motion for a new trial on the ground that Trial Counsel provided
constitutionally ineffective assistance for failing to investigate or
12. This characterization overlooks that Shannon testified that
she and Salazar exchanged texts only within a few days of the
incident, whereupon she blocked him and so advised the police.
Thus, evidence that she had exchanged voice and text messages
with Salazar some three months after the incident would not
have confirmed her testimony in this regard. If credited by the
jury, it would have refuted her testimony.

State v. Salazar
20200561-CA 	19 	2022 UT App 38
use the Voxer messages.13 Generally, we review a trial court’s
ruling on a motion for a new trial for an abuse of discretion. State
v. J.A.L., 2011 UT 27, ¶ 20, 262 P.3d 1. “But when a defendant
moves 	for 	a 	new 	trial 	on 	ineffective 	assistance 	of 	counsel
grounds, we apply the standard of review set forth in Strickland
v. Washington, 466 U.S. 668 (1984).” State v. Torres-Orellana, 2021
UT App 74, ¶ 26, 493 P.3d 711, cert. granted, 502 P.3d 268 (Utah
2021). That standard presents a mixed question of fact and law.
Strickland, 466 U.S. at 698. We thus “review a trial court’s
13. Salazar also contends that Trial Counsel was ineffective in
two additional respects. First, he asserts that Trial Counsel was
ineffective for advising him not to testify. Given our reversal, it
is unnecessary to definitively weigh in on this. But we do view
this decision as “a quintessential question of judgment and
strategy.” See State v. Fleming, 2019 UT App 181, ¶ 12, 454 P.3d
862. And here, even though Salazar did at times state during his
interview that Shannon initiated the sexual contact, he also
offered statements that could have been damaging to his case.
For example, when asked if it seemed like Shannon wanted to
have sex at the time, Salazar responded, “That’s what it seemed
like, but sitting here I don’t think so.” Considering that the
interview contained both potentially beneficial and potentially
harmful statements, it is doubtful we would conclude that Trial
Counsel acted unreasonably in advising Salazar not to testify.
See State v. Franco, 2012 UT App 200, ¶ 10, 283 P.3d 1004 (“A
decision by counsel that reasonably weighs the risks and benefits
of 	available 	strategic 	approaches 	before 	choosing 	one 	as
preferable to others cannot support a claim that counsel was
deficient in either strategy or performance, even if the approach
did not lead to the desired result.”).
Second, Salazar asserts that Trial Counsel was ineffective for
not calling Junior and Tim to testify in an effort to undermine
Shannon’s credibility. But due to our reversal on Trial Counsel’s
failure to introduce the Voxer messages to undermine Shannon’s
credibility, we have no need to address this claim either.

State v. Salazar
20200561-CA 	20 	2022 UT App 38
application 	of 	the 	law 	to 	the 	facts 	for 	correctness 	and, 	if
applicable, we review the court’s findings of fact for clear error.”
Torres-Orellana, 2021 UT App 74, ¶ 26.14
¶32 	Salazar also argues that the trial court “erred when it
allowed the jury to consider Shannon’s testimony even though
she admitted that she had no independent memory of the
events.” It is not entirely clear, however, whether Salazar is
appealing from the trial court’s denial of his directed verdict
motion or from the court’s denial of his motion for a new trial,
both of which raised the same claim. And the directed verdict
motion implicates a different remedy. See State v. Emmett, 839
P.2d 781, 784 (Utah 1992) (“When a motion for a directed verdict
is made at the close of the State’s case, the trial court should dismiss
the charge if the State did not establish a prima facie case against
the 	defendant 	by 	producing 	believable 	evidence 	of 	all 	the
14. The concurring opinion in State v. Torres-Orellana, 2021 UT
App 74, 493 P.3d 711, cert. granted, 502 P.3d 268 (Utah 2021),
noted that this standard of review is problematic. Specifically,
the concurrence suggested that when reviewing a trial court’s
ruling on an ineffective assistance of counsel claim raised in a
motion for a new trial, appellate courts should review the court’s
prejudice ruling for abuse of discretion instead of for correctness
because “there is simply no jurist better positioned to assess
whether the interest of justice requires a new trial, and whether a
trial error or impropriety has caused a substantial adverse effect
on the defendant’s rights.” Id. ¶ 47 (Harris, J., concurring)
(quotation simplified). Our Supreme Court has granted certiorari
to review our holding in that case, perhaps to consider the
concurring opinion’s noteworthy observations, but pending an
opinion from the Court on that issue, we remain bound by
precedent and apply a nondeferential standard of review in
evaluating 	both 	the 	trial 	court’s 	deficient 	performance 	and
prejudice analyses.

State v. Salazar
20200561-CA 	21 	2022 UT App 38
elements of the crime charged.”) (emphasis added) (quotation
otherwise simplified).
¶33 	Salazar 	first 	asserts 	that 	“the 	district 	court 	erred 	in
admitting Shannon’s testimony and in declining to strike it even
after she admitted that she had no independent memory of most
of the events.” But he later asserts that “[t]his court should
reverse the conviction” and that Trial Counsel “sought this
remedy when he made a motion for directed verdict based on
the 	fact 	that 	Shannon 	did 	not 	remember 	what 	happened.”
Salazar 	then 	takes 	another 	turn 	in 	his 	actual 	analysis 	and
proceeds 	to 	quote 	exclusively 	from 	the 	trial 	court’s 	order
denying his motion for a new trial on this issue and does not cite
or quote the court’s statements in denying his directed verdict
motion.
¶34 	In essence, Salazar is presenting three avenues for review:
(1) evaluation 	of 	the 	court’s 	decision 	to 	admit 	evidence;
(2) evaluation of the court’s decision to deny his motion for
directed verdict; and (3) evaluation of the court’s decision to
deny his motion for a new trial. These three avenues, however,
do not give rise to the same standard of review. See State v.
Lowther, 2017 UT 34, ¶ 17, 398 P.3d 1032 (“The appropriate
standard of review for a district court’s decision to admit or
exclude evidence is abuse of discretion.”) (quotation simplified);
State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168 (“We review a
trial 	court’s 	ruling 	on 	a 	motion 	for 	directed 	verdict 	for
correctness.”); State v. Colwell, 2000 UT 8, ¶ 12, 994 P.2d 177
(“When reviewing a trial court’s denial of a motion for a new
trial, we will not reverse absent a clear abuse of discretion by the
trial 	court.”) 	(quotation 	simplified). 	But 	because 	Salazar’s
analysis focuses all but exclusively on the trial court’s order
denying his motion for a new trial, this would be the avenue we
would consider. Given that, we decline to address this issue
because, due to our determination that Salazar is entitled to a
new trial as a result of Trial Counsel’s ineffectiveness, Salazar
gets the remedy he is asking for anyway, i.e., a new trial.

State v. Salazar
20200561-CA 	22 	2022 UT App 38
ANALYSIS
¶35 	Salazar contends that Trial Counsel was ineffective for not
using the Voxer messages at trial. Specifically, he asserts that
Trial Counsel could not have acted reasonably, and that he was
prejudiced 	as 	a 	result, 	because 	the 	messages 	would 	have
“showed 	that 	Shannon 	lied 	when 	she 	repeatedly 	and
unequivocally testified at the preliminary hearing that she never
again contacted [Salazar].”15
¶36 	An ineffective assistance claim requires a defendant to
prove both that (1) “counsel’s performance was deficient” and
15. There is some disagreement on appeal regarding Salazar’s
claim 	that 	Trial 	Counsel 	performed 	deficiently 	in 	not
investigating the Voxer messages. The State argues that Salazar
has failed to rebut the presumption that Trial Counsel acted
appropriately and investigated the messages because Salazar
provides 	no 	further 	information 	regarding 	Trial 	Counsel’s
efforts beyond stating that he gave the iPod to Trial Counsel. See
State v. Wright, 2021 UT App 7, ¶ 57, 481 P.3d 479 (stating that if
the 	defendant 	cannot 	“point 	to 	anything 	in 	the 	record 	to
substantiate what Counsel failed to do,” courts “presume that
they did what they should have done”) (quotation simplified).
This is ultimately unimportant to our analysis because even if
we accept the State’s argument that Trial Counsel is presumed to
have 	investigated 	the 	messages, 	it 	does 	not 	change 	our
conclusion that Trial Counsel was ineffective for not using them
at trial. Furthermore, the trial court stated, “There’s evidence
before me that [Trial Counsel] had them and elected not to use
them.” Thus, we do not conclude that Trial Counsel failed to
investigate the existence of the messages, because he actually
had the messages, even though it is suggested by Salazar that
Trial Counsel did not have the technical expertise to access and
review them. Instead, our analysis focuses on his decision not to
use them at trial.

State v. Salazar
20200561-CA 	23 	2022 UT App 38
(2) “the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687 (1984).
¶37 	To establish deficient performance, i.e., that counsel’s
actions “fell below an objective standard of reasonableness,” the
defendant 	must 	overcome 	the 	“strong 	presumption 	that
counsel’s conduct falls within the wide range of reasonable
professional 	assistance.” 	Id. 	at 	688–89. 	Indeed, 	“even 	if 	an
omission is inadvertent and not due to a purposeful strategy,
relief is not automatic.” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d
871 (quotation simplified). Instead, “the ultimate question is
always whether, considering all the circumstances, counsel’s acts
or omissions were objectively unreasonable.” State v. Scott, 2020
UT 13, ¶ 36, 462 P.3d 350.
¶38 	To 	establish 	prejudice, 	“a 	defendant 	must 	present
sufficient evidence to support a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Archuleta v. Galetka, 2011 UT 73,
¶ 40, 	267 	P.3d 	232 	(quotation 	simplified). 	“A 	reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694.
I. Deficient Performance
¶39 	Salazar asserts that because this case hinged on Shannon’s
credibility, 	Trial 	Counsel 	performed 	deficiently 	in 	not
introducing the Voxer messages to undermine her credibility.
We agree.
¶40 	Here, Shannon was the lead witness for the State, and the
testimony of the other witnesses called by the State was intended
to support her testimony. It may be that the case could have
been ably tried a different way, but it was not, and we must
analyze Trial Counsel’s actions in light of the legal landscape he
confronted at the time. See Strickland v. Washington, 466 U.S. 668,
690 (1984) (“[A] court deciding an actual ineffectiveness claim

State v. Salazar
20200561-CA 	24 	2022 UT App 38
must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of
counsel’s conduct.”) (emphasis added). Against this background,
we conclude that, with Shannon as the State’s lead and most
critical witness, any reasonable counsel would have presented
the Voxer messages to undermine her credibility.
¶41 	This case is similar to Gregg v. State, 2012 UT 32, 279 P.3d
396. In that case, “Ms. S.” alleged that Gregg, whom she had met
on a dating website, raped her after they met in person. Id. ¶¶ 4,
6. There were no witnesses to the incident, but Ms. S.’s friends
came to her apartment soon after the alleged rape and witnessed
Ms. S. crying. Id. ¶¶ 8–9. Her friends convinced her to go to the
hospital for a sexual assault examination, and eventually she
contacted the police and charges were filed. Id. ¶¶ 9–11. With no
physical evidence of or witnesses to the rape, the case hinged
largely on Ms. S.’s credibility. Id. ¶ 30.
¶42 	At trial, Ms. S. testified that she logged onto the dating
website “after the alleged rape to aid the police investigation.”
Id. ¶ 23. Gregg was convicted. On appeal, he argued that his trial
counsel was ineffective because counsel failed to investigate
emails Ms. S. sent to other men on the dating website two days
after 	the 	alleged 	rape, 	which 	would 	have 	undermined 	her
credibility. Id.
¶43 	Our Supreme Court agreed and reversed. Id. ¶¶ 23, 49. It
held that because the case hinged on Ms. S.’s credibility, counsel
acted unreasonably in not investigating or presenting the emails
that would have “directly rebutted” Ms. S.’s claim that she
accessed 	her 	online 	dating 	account 	only 	to 	aid 	the 	police.
Id. ¶ 29. It explained that, “although it is undisputed that a
person can be convicted of rape solely on the testimony of the
victim, we have nevertheless held that where the conviction is
not strongly supported by the record and trial counsel fails to
investigate 	and 	present 	evidence 	impacting 	the 	victim’s
credibility, Strickland is met.” Id. ¶ 30 (quotation simplified).

State v. Salazar
20200561-CA 	25 	2022 UT App 38
¶44 	Here, much like the situation in Gregg, Shannon was the
only witness to the event—aside from Salazar and Owner—and
her 	credibility 	was 	central 	to 	Salazar’s 	conviction. 	And
Shannon’s credibility was already in some doubt, more so than
was that of Ms. S. in Gregg. While Shannon was on the stand, she
stated 	approximately 	40 	times 	that 	she 	did 	not 	remember
specifics about the incident. And the jury had to watch, time and
again, 	a 	recurring 	exercise 	through 	almost 	the 	entirety 	of
Shannon’s 	testimony 	in 	which 	the 	prosecutor 	showed 	her
documents with highlights and sticky notes in an attempt to
refresh her recollection and aid her testimony. Shannon was also
not able to keep her story about the soda straight. When first
talking to the detective, Shannon stated that she had a soda that
made her feel strange before the assault. She repeated that claim
to the nurse. But at the preliminary hearing, Shannon testified
that the soda did not affect her in any way. And at trial, she
testified that she did not remember telling the detective or the
nurse 	about 	the 	soda. 	Thus, 	there 	were 	already 	cracks 	in
Shannon’s credibility.
¶45 	Given this backdrop, see State v. Scott, 2020 UT 13, ¶ 36,
462 P.3d 350 (noting that when analyzing whether trial counsel’s
performance was unreasonable courts must consider “all the
circumstances”), just as it was unreasonable for counsel in Gregg
not to present the emails to undercut Ms. S.’s credibility, it was
likewise unreasonable for Trial Counsel in this case not to use
the Voxer messages to undercut Shannon’s already problematic
credibility. At the preliminary hearing, Shannon categorically
stated that, following a few messages sent soon after the assault
that she reported to the police, she blocked Salazar and had no
further contact with him. Then, at trial, she testified that she did
not “recall having contact or socializing with . . . Salazar after the
[incident]” 	but 	simply 	stated, 	“I 	was 	told 	that 	I 	reported
something before to the cops, but I don’t remember.” And
Shannon did state that it was “correct” that “at the preliminary
hearing under oath [she] said that [she] would never have had
contact with [Salazar] after the fact” and that if she ran into him,

State v. Salazar
20200561-CA 	26 	2022 UT App 38
“it probably wouldn’t have been a big deal” because she was
“just trying to put it all behind [her].” The Voxer messages,
therefore, 	would 	have 	directly 	contradicted 	Shannon’s
statements at the preliminary hearing and at trial, and would
likely have undermined her credibility in the eyes of the jury, in
conjunction with her inability to remember most of the specifics
of 	the 	assault 	without 	the 	prosecutor’s 	direction 	and 	her
changing story about the soda. Thus, just as in Gregg, because
“the conviction is not strongly supported by the record and trial
counsel fail[ed] to . . . present evidence impacting the victim’s
credibility,” 	Trial 	Counsel’s 	failure 	to 	present 	the 	Voxer
messages at trial was objectively unreasonable. See 2012 UT 32,
¶ 30.
¶46 	The State argues that Gregg is distinguishable from this
case. It contends that in Gregg, there was no “independent
physical evidence that supported or contradicted the victim’s
testimony” whereas here, the nurse testified that Shannon’s
injuries were the worst she had ever seen. We disagree. While
the nurse did, in fact, testify that the injuries were the worst she
had seen, she still conceded that they could have come from
consensual sex, so the exam did not categorically establish that a
non-consensual 	encounter 	occurred.16 	This 	is 	not 	such
compelling 	“physical 	evidence” 	of 	a 	rape 	that 	it 	shifts the
16. In State v. Torres-Orellana, 2021 UT App 74, 493 P.3d 711, cert.
granted, 502 P.3d 268 (Utah 2021), we held that the degree of the
injuries the victim sustained to her genitals was indicative of
non-consensual sex. See id. ¶ 35. But in that case, the severity of
the injuries was also accompanied by the examining nurse’s
testimony that “the number and seriousness of the injuries [the
victim] suffered to her genital area . . . were caused by ‘several
different 	motions,’ 	which 	was 	highly 	indicative 	of
non-consensual sex.” Id. ¶ 39. See id. ¶ 35. Torres-Orellana is
therefore distinguishable from the case now before us because
no such testimony appears in our record.

State v. Salazar
20200561-CA 	27 	2022 UT App 38
evidentiary picture from solely relying on Shannon’s credibility
and distinguishes our case from Gregg. The case still primarily
hinged 	on 	Shannon’s 	testimony 	just 	as 	it 	did 	on 	Ms. 	S.’s
testimony in Gregg. And the nurse’s testimony did not so alter
the evidentiary landscape as to change that.
¶47 	The State also argues that this case is distinguishable
because there is no indication that the prosecutor in Gregg “was
poised to rebut the unpresented emails . . . with a rape-myth
expert.” As we discuss later, see infra ¶¶ 49–50, the threat of a
rape-myth expert was overblown in the context of the Voxer
messages and does not significantly distinguish this case from
Gregg. The messages would properly have been used only to
attack Shannon’s credibility and would not have been used to
suggest that Shannon’s behavior after the alleged assault was
indicative 	of 	someone 	who 	had 	not 	been 	raped. 	Thus,
there 	would 	have 	been 	no 	logical 	connection 	between 	the
rape-myth 	expert’s 	testimony 	and 	whether 	Shannon 	was 	a
credible witness.
¶48 	Finally, the State argues that “unlike the unpresented
impeachment evidence in Gregg . . . , the Voxer evidence would
have been relevant only to a side issue, not the central issues in
the case.” This argument is equally unpersuasive. In Gregg, the
unpresented emails went only to the issue of Ms. S.’s credibility
because she testified at trial that she did not use her online
dating account after the rape except to help police, when in fact
she continued to use it to send messages to other men. Here, the
evidence was on the same footing, as Shannon said she never
contacted Salazar after the assault while the Voxer messages
show that she did. We cannot see how the Voxer messages are
simply “a side issue” in this case while the messages in Gregg
went to “the central issues in the case.” In both cases, the
impeachment evidence showed that the complaining witnesses
were not completely credible in their testimony, and in both
cases 	the 	underlying 	inconsistencies 	were 	unrelated 	to 	the
alleged assault.

State v. Salazar
20200561-CA 	28 	2022 UT App 38
¶49 	Here, the trial court did not analyze the reasonableness of
Trial Counsel’s performance but instead dismissed Salazar’s
claim because it ruled that Salazar could not show prejudice. The
State, however, provides three reasons on appeal why Trial
Counsel could have reasonably decided not to use the Voxer
messages.
¶50 	First, the State asserts that Trial Counsel could have been
“reasonably 	concerned 	that 	the 	jury 	would 	still 	believe
Shannon’s 	testimony 	. 	. 	. 	even 	if 	counsel 	used 	the 	Voxer
messages, 	because 	the 	Voxer 	evidence 	said 	nothing 	about
whether Shannon consented to a threesome in the closet that
night.” This argument misses the point. Properly viewed, the
Voxer messages had nothing to do with the claimed assault and
dealt only with Shannon’s credibility. She had testified that she
did not have contact with Salazar after the rape, except right
after the incident, following which she blocked him and reported
the contact to the police. But the Voxer messages show that she
did 	have 	further 	contact 	with 	Salazar. 	A 	decision 	by 	Trial
Counsel not to use the messages as impeachment evidence
because he feared that the jury might nonetheless find Shannon
credible and still believe her account of the assault would not be
reasonable and would be an abdication of counsel’s “duty” to
make 	“the 	trial 	a 	reliable 	adversarial 	testing 	process.” 	See
Strickland v. Washington, 466 U.S. 668, 688 (1984). Credibility is
ultimately the jury’s call, to be sure, but when a case turns on
credibility, competent representation will include giving the jury
relevant information to help it gauge the credibility of a critical
adverse witness.
¶51 	Second, the State posits that Trial Counsel also had to
consider “whether he could lay foundation for or authenticate
the Voxer messages.” This argument is also unpersuasive. With
the exception of a single text message, the Voxer messages were
voice messages sent from Shannon, and almost any of the
witnesses at trial could have authenticated them based on their
familiarity with her voice. See Utah R. Evid. 901(a), (b)(5) (stating

State v. Salazar
20200561-CA 	29 	2022 UT App 38
that “[a]n opinion identifying a person’s voice—whether heard
firsthand or through mechanical or electronic transmission or
recording—based 	on 	hearing 	the 	voice 	at 	any 	time 	under
circumstances 	that 	connect 	it 	with 	the 	alleged 	speaker” 	is
“evidence that satisfies” “the requirement of authenticating or
identifying an item of evidence”). Indeed, Shannon herself could
presumably have authenticated them. Thus, Trial Counsel could
have easily authenticated the messages, and this minimal hurdle
would not have deterred reasonable counsel from presenting
them.
¶52 	Third, 	the 	State 	asserts 	that 	Trial 	Counsel 	acted
reasonably because he “knew from his discussions with the
prosecutor that if he introduced the Voxer evidence for any
purpose, including attempting to impeach Shannon’s testimony
. . . , the prosecutor would call a rape-myth expert to explain her
counterintuitive behavior.” The State reads too much into this
possibility. The prosecutor did not inform Trial Counsel that if
he presented the Voxer messages for any purpose, such as to
attack 	Shannon’s 	credibility, 	the 	prosecutor 	would 	call 	a
rape-myth expert. In fact, when responding to Salazar’s claim
about Trial Counsel not calling Junior and Tim, the prosecutor
argued that Salazar “wants this court to buy into the idea that a
‘victim’ should respond to their rapist in some standardized
manner, 	but 	research 	shows 	this 	simply 	is 	not 	true.” 	The
prosecutor 	explained, 	with 	our 	emphasis, 	that 	“there 	was
discussion between the parties about the potential of the State
calling a ‘Rape Myth’ expert which did not occur” because Trial
Counsel “made the decision not to pursue this theory of the case.”
Then, when responding directly to Salazar’s Voxer arguments,
the prosecutor noted that when the messages “were located, the
State would need to evaluate them and determine whether a . . .
rape myth expert would have been required.” Thus, it is clear
the prosecutor’s threat to call such an expert hinged primarily on
the notion that if Trial Counsel used the Voxer messages to
suggest 	that 	Shannon’s 	behavior 	after 	the 	incident 	was
counterintuitive, the prosecutor would call the expert to put that

State v. Salazar
20200561-CA 	30 	2022 UT App 38
evidence into proper context. The State understandably said
nothing about calling the expert if the messages were used only
to undermine Shannon’s credibility. Thus, this threat of calling
an expert witness is not a basis on which to conclude that Trial
Counsel acted reasonably. Trial Counsel could have made clear
to the court and the jury that the defense did not in any way
contend 	that 	the 	Voxer 	messages 	showed 	that 	Shannon
consented to the sexual encounter with Salazar and Owner,
foreclosing 	any 	relevance 	of 	a 	rape-myth 	expert, 	while
hammering 	home 	the 	argument 	that 	the 	messages 	showed
Shannon was not a credible witness.
¶53 	But 	even 	if 	a 	rape-myth 	expert 	had 	been 	called 	to
testify, notwithstanding Trial Counsel’s position, the jury would
have 	recognized 	that 	there 	was 	no 	logical 	connection
between the expert’s testimony and the reason the evidence
was being presented. Thus, reasonable counsel would have
pressed 	forward 	and 	presented 	this 	critical 	credibility
evidence. Ultimately, we agree with Salazar that “Shannon’s
friendly behavior after the incident had little if any probative
value” 	as 	concerns 	consent. 	“But 	her 	lying 	about 	[the
post-rape contact] had enormous probative value . . . . So it
would not have mattered if the prosecution called a rape-myth
expert.”
II. Prejudice
¶54 	Having 	concluded 	that 	Trial 	Counsel 	performed
deficiently in not introducing the Voxer messages at trial, we
must now determine whether Salazar was prejudiced as a result.
Salazar 	contends 	that 	Trial 	Counsel’s 	deficient 	performance
prejudiced him because Shannon’s “testimony was the only
direct 	evidence 	of 	guilt” 	and 	thus 	“[t]here 	is 	a 	reasonable
probability that the outcome would have changed if the jury
heard that Shannon had perjured herself.” Without embracing
Salazar’s perjury characterization, we agree with Salazar’s basic
point.

State v. Salazar
20200561-CA 	31 	2022 UT App 38
¶55 	Here, the trial court ruled that Salazar had not been
prejudiced by Trial Counsel’s failure to use the Voxer messages.
It found that while Shannon did testify that she had no contact
with 	Salazar 	after the 	assault, 	she 	did 	state 	“that she 	had
forgotten she exchanged messages with [Salazar] and reported
the messages to the police.” Thus, the trial court determined,
“presenting 	the 	Voxer 	messages 	to 	the 	jury 	would 	have
confirmed [Shannon’s] testimony as much as it would have
impeached it.” This is incorrect.
¶56 	Although Shannon did say she had forgotten about the
messages that she reported to the police, those messages were
ones she earlier said had been received in the days immediately
after the alleged assault. The Voxer messages, on the other hand,
were exchanged approximately three months after the incident,
at a point in time when Shannon had been adamant that she had
no deliberate contact with Salazar. Thus, the Voxer messages
would 	not 	have 	confirmed 	Shannon’s 	testimony. 	On 	the
contrary, they would have demonstrated, at a minimum, that
Shannon 	had 	yet 	more 	memory 	gaps 	regarding 	her
communication with Salazar and, potentially, that she had lied
about 	having 	contact 	with 	Salazar 	later.17 Thus, 	the 	Voxer
17. While Shannon was obviously not a stellar witness, the jury
might have been inclined to cut her some slack because of the
traumatic event she described, perhaps concluding that it would
be reasonable for her to have blocked some details from her
memory during the seven-year gap between the incident and
trial. But the exchanges shown by the Voxer messages are not the
kind of incidental communication one would somehow forget.
Over a period of roughly eight days, Shannon sent twenty voice
messages and one text message to Salazar in which she invited
Salazar to come hang out with her, discussed joining the Air
Force, talked about a car accident she was in, and spoke of her
father’s cancer diagnosis.

State v. Salazar
20200561-CA 	32 	2022 UT App 38
messages would have further undercut Shannon’s credibility,
not strengthened it.
¶57 	The 	trial 	court 	also 	ruled 	that 	even 	if 	the 	jury 	had
reasoned that the Voxer messages indicated Shannon lied at the
preliminary hearing, the jury could still have found her credible
at 	trial. 	While 	this 	is 	true 	in 	the 	abstract—the 	jury 	could
conclude she lied before but was truthful at trial or even that
while lying about her later encounters with Salazar she was
nonetheless 	truthful 	about 	her 	claims 	of 	rape—it 	is 	not
dispositive. The court based its reasoning primarily on the fact
that 	Shannon’s 	“testimony 	was 	corroborated 	by 	[Friend’s]
testimony and was consistent with statements she made to [the
nurse] and [Coworker].” We disagree that this “corroborating”
testimony was so strong as to overcome any likely change in the
result at trial had the jury been presented with the Voxer
messages.
¶58 	Shannon was the lead witness in the case, and the State’s
prospects for a conviction primarily rested on her testimony.
Thus, 	every 	sound 	challenge 	to 	her 	credibility, 	which 	was
already on shaky ground, significantly increased the chances
that 	the 	jury 	would 	find 	her 	incredible 	as 	a 	witness,
undercutting the State’s ability to demonstrate Salazar’s guilt
beyond a reasonable doubt. True, there was testimony from
individuals about Shannon’s emotional state that evening, just as
there was in Gregg, along with testimony from the nurse that
Shannon’s injuries were the worst she had ever seen. But the
nurse conceded that the injuries did not prove lack of consent.
And 	there 	“was 	no 	independent 	physical 	evidence 	that
supported or contradicted [Shannon’s] testimony, and therefore,
the conviction is not strongly supported by the record.” See
Gregg v. State, 2012 UT 32, ¶ 30, 279 P.3d 396.
¶59 	Accordingly, we are persuaded that the jury’s view of
Shannon’s credibility would likely have been materially different
if the Voxer messages had been presented to it. Given Shannon’s

State v. Salazar
20200561-CA 	33 	2022 UT App 38
problematic testimony and the lack of necessarily inculpatory
physical evidence, the Voxer messages would have “affected the
overall evidentiary picture,” see id., and the jury may well have
found Shannon less credible, regardless of the other testimony.
Thus, had Trial Counsel further undercut Shannon’s credibility
by 	introducing 	the 	Voxer 	messages, 	“there 	is 	a 	reasonable
probability that . . . the result of the proceeding would have been
different.” See Strickland v. Washington, 466 U.S. 668, 694 (1984).
See also State v. Larrabee, 2013 UT 70, ¶¶ 35–37, 321 P.3d 1136
(holding that counsel’s deficient performance prejudiced the
defendant when there was little physical evidence and the case
turned on the victim’s credibility); Gregg, 2012 UT 32, ¶¶ 26–28
(same); State v. Templin, 805 P.2d 182, 188 (Utah 1990) (same);
State v. Bujan, 2006 UT App 322, ¶ 32, 142 P.3d 581 (same), aff'd,
2008 UT 47, 190 P.3d 1255.
CONCLUSION
¶60 	Trial Counsel performed deficiently in not introducing
the Voxer messages at trial, and this failure prejudiced Salazar.
We therefore reverse Salazar’s conviction and remand for a new
trial.